bitration has fortunately offered a means of disposing of many claims which prove impossible of settlement by diplomatic negotiation. Numerous claims, however, might be mentioned in which a foreign government, denying its liability in the premises, has refused to submit the issue to arbitration, and the claimant government, rather than resort to force, with its necessary consequences, has felt itself constrained or considered it preferable to drop the matter and abandon the claim. The power of the government, by treaty or otherwise, to renounce or relinquish the claims of its citizens, is indisputable. The circumstances under which the government, by reason of such renunciation of the claims of its citizens, may be deemed to incur liability to the individual claimant, will be considered presently.

1

The complete control of the government over the claim of its citizen does not cease when an award upon it has been made by an arbitral tribunal. This fact has been illustrated in several cases, where awards which the government regarded as having been unjustly obtained, were either not collected from the defendant states, or after having been paid, were returned in their entirety. In the case of Lazare against Haiti, Secretary Bayard set aside an arbitral award in claimant's favor on the ground that newly discovered evidence indicated the injustice of the award, and that there were irregularities in the arbitral proceedings and errors in the award.2 In the case of Pelletier against Haiti an award in claimant's favor was set aside by Secretary Bayard on the ground that the arbitrator had been mistaken in his jurisdiction and that the claim should have been dismissed, that the claimant was guilty of turpitude, and that the Executive should refuse to enforce

1

See, e. g., the renunciation of American claims against Spain, treaty of Feb. 22, 1819, art. 9, Malloy's Treaties, II, 1654; Meade v. U. S., 2 Ct. Cl. 224, 9 Wall. 691; Mutual release of claims in treaty of Feb. 17, 1834, art. 3, Malloy's Treaties, II, 1660; Treaty of Dec. 10, 1898 with Spain, art. 7, Malloy's Treaties, II, 1692; Spanish claims against Venezuela, treaty of June 21, 1898 cited in Corcuera (Spain) v. Venezuela, Apr. 2, 1903, Ralston, 936; Betancourt, ibid. 940; Certain Danish claims against U. S. relinquished in convention of March 28, 1830, Moore's Arb. 4549, 4563; Convention between Russia and Roumania, Apr. 21-May 3, 1882, for relinquishment of claims growing out of war with Turkey (damages caused by passage of Russian armies), 74 St. Pap. 297.

2 Lazare (U. S.) v. Haiti, May 24, 1884, Moore's Arb. 1749, 1779, 1793,

an unconscionable award.1 In both cases, the Department of State declined to collect the awards from Haiti.

In the case of the Caroline against Brazil, the United States, by act of Congress, returned to Brazil an indemnity which had been paid to a diplomatic representative of this government, the Attorney-General having advised that Brazil was not internationally liable on the claim.2

In some instances where awards were made in favor of the United States on claims which were subsequently found to have been fraudulent this government has returned to the foreign nation any indemnity it may have paid, and this notwithstanding the fact that a part of the indemnity had already been distributed to the claimants. The most notable cases under this head are the claims of Weil and La Abra Silver Mining Co. against Mexico in which-on what proved later to have been shameless fraud and perjury-awards were obtained from the Umpire of the mixed commission under the treaty of July 4, 1868. After a re-investigation of the cases by the Court of Claims, under the authority of Congress, had established the fraudulent character of both claims, the United States first returned to Mexico the undistributed balance paid on the claims and subsequently repaid the installments already distributed.3 In Frelinghuysen v. Key, Chief Justice Waite declared that "the government which has been so imposed on as to prosecute a fraudulent claim is in duty bound to repudiate the act and make reparation to the aggrieved state."

The United States has on several occasions, as a matter of equity or friendship, returned to foreign countries portions of indemnities which, upon allotment to entitled claimants, proved to have exceeded the amount of injury sustained.*

1 Pelletier (U. S.) v. Haiti, Moore's Arb. 1749, 1757, 1794, 1800.

2 Moore's Arb. 1342, note. Some of the indemnity paid to the diplomatic representative never reached the Treasury, it seems.

3 Moore's Arb. 1324 et seq.; Decisions of the Court of Claims in the La Abra case, 32 Ct. Cl. 432, 175 U. S. 423 and in the Weil case, 35 Ct. Cl. 42; Return to Mexico of undistributed balance, For. Rel., 1900, 781-784; Appropriation for repayment of distributed installments, Act of Feb. 14, 1902, 32 Stat. L. 5. The fraudulent award which was set aside in the Gardiner case (Moore's Arb. 1255) was that of a domestic commission.

4 Repayment of part of Japanese indemnity fund, Act of Feb. 22, 1883, 22 Stat. L. 421, Sen. Doc. 231, pt. 1, 56th Cong., 2nd sess., 405; Return of part of Chinese

§ 148. Government not Liable for Mismanagement.

The plenary control of the government over a claim of its citizen is demonstrated by the fact that the failure to fulfill the political obligation of diplomatic protection or the mismanagement of the case so as to deprive the individual claimant of redress does not subject the state to any pecuniary liability. Notwithstanding various dicta to the effect that the government must either procure redress for its citizens or itself reimburse them, it seems clear that under AngloAmerican law no legal liability can attach to the government for failure or negligence in the matter of protection, a principle justifiable either on the theory that a political and discretionary act escapes judicial review and control or on the ground that the government is not liable in tort and cannot be sued without its consent.2 In the case of Alfred Benson, a petition to Congress to obtain relief for a failure of the administration of President Fillmore to carry out its assurances of protection to the memorialist in the removal of guano from the Lobos Islands received the support of a Senate committee, but appears not to have been favored with an appropriation by Congress.

3

In French law, the immunity of the government from liability for failure to protect or to secure redress, or for mismanagement of the claim, is based upon the theory of an acte de gouvernement, which escapes judicial review," or, as Brémond explains it, the absence of any indemnity fund, Act of Mar. 3, 1885, 23 Stat. L. 436; Moore's Arb. 4627, 4637; Sen. Doc. 231, pt. 1, 56th Cong., 2nd sess., 391-393; Remission of part of Boxer indemnity, Joint Res., May 25, 1908, For. Rel., 1908, 64. Such a surplus is not always returned, e. g., Great Britain still retains apparently an undistributed portion of the French indemnity under the conventions of 1815 and 1818, and the United States a small portion of the Alabama award.

1 The Lord Chancellor in Baron de Bode's case, 16 L. and Eq. R. 23. Chief Justice Parker in Farnum v. Brooks, 9 Pick. 238. See also Rutherforth's Institutes, Cambridge, 1756, II, ch. IX, § 11, p. 514.

2 These questions were exhaustively argued in the cases of the Brig General Armstrong, Sen. Misc. Doc. 140, 35th Cong., 1st sess. (in which Congress in 1882 on patriotic grounds voted some $70,000 to the claimants), and of R. W. Meade, H. Rep. 226, 36th Cong., 1st sess. (Court of Claims). See also Atty. Gen. Cushing in 7 Op. Atty. Gen. 239.

5 Laferrière states that it is a constant rule of the Conseil d'Etat to deny the suability of the state for the refusal of the Minister of Foreign Affairs to support a claim

legal obligation of or individual right to protection, which is a purely political, sovereign and discretionary act, responsibility for which is incurred to parliament alone.1

The same freedom from judicial control, by mandamus or otherwise, extends to the Executive's discretion in the distribution of awards received from foreign governments,2 individual claimants having no lien upon the fund received. Payment by the government to a claimant, however, does not determine the question of ownership, which is then, as between contesting beneficiaries, wholly within the jurisdiction of the courts. 3

The abandonment or surrender of a private claim imposes no legal liability upon the state, under any circumstances, it is believed. When, however, a private claim is used as a set-off to obtain certain national advantages an equitable obligation arises to reimburse the individual. whose private right has thus been sacrificed for the public good. In a noteworthy decision of the Court of Claims in a French Spoliation case, that Court, under the authority of Congress, translated this obligation into a legal liability, by holding the government responsible to its nationals for the French spoliation claims which had been surrendered to France in exchange for a release from the obligations of the treaties of 1778 and 1788.4

against a foreign nation or take any particular measures of diplomatic protection. Laferrière, op. cit., II, 48; Pradier-Fodéré, Cours de droit diplomatique, 2nd ed., Paris, 1899, p. 544, note. See the following decisions: Du Penhoat, Apr. 26, 1855, Lebon, 313; Lucas, Feb. 1, 1851, Lebon, 86; Jecker, Nov. 18, 1869, Lebon, 890; Poujode, Sirey, 1906, 3, 158 and particularly Dupuy, Jan. 12, 1877, Lebon, 48. For English law on the general question, see W. W. Lucas, "The legal status of sovereignty" in 24 Juridical Rev. (1912), 185–200.

1 Brémond in article "Actes de gouvernement" in 5 Rev. de Dr. Pub. (1896), 57. 2 Frelinghuysen v. Key, 110 U. S. 63; U. S. ex rel. Boynton v. Blaine, 139 U. S. 306. The French law appears to be the same, adopting the theory that the distribution of the fund is a part of the original diplomatic act, an acte de gouvernement. See the following cases before the Conseil d'Etat: Courson, Jan. 5, 1847, Lebon, 1; Dubois, Apr. 30, 1867, Lebon, 421. Brémond contests this view (op. cit., 58), holding that by the receipt of the fund, the state has by a kind of novation become the debtor, and should be subjected to suit by individual claimants.

3

Infra, § 157. See also the French case of Pontus before the Council of State, May 25, 1832, Lebon, 160.

* Infra, § 149. See also Gray v. U. S., 21 Ct. Cl. 340, 392 and Ship Jane, Adams v. U. S., Act of Jan. 20, 1885, 23 Ct. Cl. 226, 253.

$149. Circumstances under which Government is Liable.

Wharton in his Digest of International Law makes the following statement:

"Should the Government of the United States, either by its neglect. in pressing a claim against a foreign government or by extinguishing it as an equivalent for concessions from such government, impair the claimant's rights, it is bound to duly compensate such claimant."

3

The doctrine that neglect in the prosecution of a claim can impose a governmental liability, is not believed to be supported by anything but certain loose dicta,2 and is opposed by law and practice. On the other hand, the principle that the renunciation of private claims as an equivalent for national advantages imposes upon the government an obligation to compensate the individual claimants whose property right has thus been used and bartered away for the public good received unchallengable support in several well-reasoned opinions of the Court of Claims in French Spoliation cases, referred to the court under the Act of January 20, 1885. The relinquishment by the United States to France of the claims of its citizens arising out of unlawful captures by French vessels in exchange for the relinquishment by France of her national claims against the United States arising out of the unfulfilled obligations of the United States under the treaty of 1778 was held to render the United States legally liable to the American claimants whose property rights had thus been surrendered. The 1 Wharton, II, § 220, p. 556.

2 Cited supra, p. 376.

3 Supra, p. 376.

4 For the history of the French Spoliation Claims, see Gray v. U. S., 21 Ct. Cl. 340 and Cushing v. U. S., 22 Ct. Cl. 1. See also Geo. A. King in 6 A. J. I. L. reprinted as Sen. Doc. 964, 62nd Cong., 3rd sess. (1912); The French spoliation claims with special reference to insurance companies, statements of J. Henry Scattergood, Wash., G. P. O. 1910. Wharton, II, 714-728; Moore's Dig. VI, § 1056. The principal cases in which the origin and nature of the claims were discussed are the Gray and Cushing cases, Ship Tom, 29 Ct. Cl. 68; 39 Ct. Cl. 290; Adams v. U. S., 23 Ct. Cl. 226 (discussing effect of art. IV of the treaty of 1800, and incidentally art. II under which the French Spoliation Claims arose; Judge Davis considered erroneous the rulings of the commission under the treaty of 1831, construing art. IV, Kane's notes, 84); Field v. U. S., 27 Ct. Cl. 224; Schooner Betsy, 44 Ct. Cl. 506; Brigs Fanny and Hope, 46 Ct. Cl. 214. In the Spanish Treaty Claims Commission (Opin. of Commissioner Chandler), it was held that the release of private claims in the treaty of 1898 involved an assumption of payment by the U. S. Opinions filed Dec. 5, 1903, p. 87.